Understanding the role of Kenya's devolved form of government in implementing the right to health

1. GOVERNANCE STRUCTURES FOR
IMPLEMENTING THE RIGHT TO HEALTH
IN KENYA
LYLA LATIF
WORKSHOP FOR CSOS ON MONITORING THE IMPLEMENTATION OF THE
RIGHT TO HEALTH UNDER THE CONSTITUTION OF KENYA
23 NOVEMBER 2016, MAANZONI LODGE

2. GOVERNANCE STRUCTURES

3. OBJECTIVES OF THIS SESSION
1. To understand our devolved governance system;
2. To understand the role of different state organs and agencies when it comes to the delivery of
health care services;
3. Since health is a devolved function, it is imperative that the role of the different actors at the
2 levels of government be well understood, and
3. As a result, to effectively advocate on enhancing the enjoyment of the right to health.

4. INTRODUCTION
NATIONAL LEVEL
Senate
National Assembly
National Executive
Judiciary
COUNTY LEVEL
County
Assembly
County
Executives
• Bound by devolution
(Training Manual at P.23)
• Are distinct and
interdependent
• Conduct mutual relations
through consultation and
cooperation

5. FUNCTIONS WITH RESPECT TO THE
RIGHT TO HEALTH
National Government
In charge of developing the
national policies and standards for
the health sector
County Government
In charge of planning and managing the
service delivery in county health facilities

6. CHECKS AND BALANCES BETWEEN THE 2
LEVELS OF GOVERNMENT
National Government
• Senate
• National Assembly
• National Executive
• Judiciary
Intergovernmental Structures
• Summit
• Council of Governors
• Intergovernmental Technical
Committee
• COG Secretariat
• Health Sector Consultative
Forum
• Intergovernmental Agencies
• Inter-county Consultative
Forums
County Government
• County Assembly
• County Executives
Facilitates consultation and cooperation between the 2 levels of government

7. NATIONAL GOVERNMENT STRUCTURES IN
IMPLEMENTATING THE RIGHT TO HEALTH
1. PARLIAMENT (National Assembly and the Senate)
2. NATIONAL EXECUTIVE
3. JUDICIARY

8. ROLE OF PARLIAMENT ON THE RIGHT TO
HEALTH
1. Formulating laws for the progressive realisation of the right to health
2. Reviewing laws that relate to the health sector to ensure the laws incorporate health as a
human right
3. Overseeing that the National Government Executive develops policies and implements
programmes for facilitating access to the right to health
4. Allocating adequate resources to counties from nationally collected revenue for the
implementation of the functions assigned to the counties
5. Ensuring adequate allocation of funds to the delivery of health as a right in the national
government’s budget to the health sector – Abuja Declaration.
See table on page 19 of the Training Manual.

9. ROLE OF THE NATIONAL EXECUTIVE IN
DELIVERING THE RIGHT TO HEALTH
COMPOSITION AND FUNCTIONS
COMPOSITION:
• President, Deputy President, Cabinet
FUNCTIONS:
• Formulate policy, develop sectoral and
national strategies
ROLE
i. Review and develop health sector policies
and bills for tabling in Parliament
ii. Set standards for guiding service delivery
iii. Develop service delivery protocols for
national referral facilities

10. ROLE OF THE JUDICIARY IN ENFORCING
THE RIGHT TO HEALTH
Articles 23 and 165 empowers the High Court to determine applications for the redress of a
denial, violation or infringement of or a threat to a right or fundamental freedom in the Bill of
Rights
High Court can issue:
a. Declaration of rights;
b. Injunctive relief (to stop violations of rights);
c. Declare a law, policy, guideline that facilitates violations of rights as invalid, and
d. Compensatory relief.

11. CONSTITUTIONAL COMMISSIONS AND INDEPENDENT
OFFICES IN MONITORING THE RIGHT TO HEALTH
1. KENYA NATIONAL COMMISSION ON HUMAN RIGHTS
2. NATIONAL GENDER AND EQUALITY COMMISSION
3. COMMISSION ON ADMINISTRATIVE JUSTICE
All play different roles in monitoring the implementation of human rights and administrative
justice in the country.

12. COUNTY GOVERNMENT STRUCTURES IN
IMPLEMENTING THE RIGHT TO HEALTH
COUNTY ASSEMBLY
Legislative arm of the county
See page 21 of the Training Manual
COUNTY EXECUTIVE
Comprises of the Governor, Deputy Governor,
County Executive Committee members and
the County Public Service
See page 21 of the Training Manual

13. INTERGOVERNMENTAL STRUCTURES
FOR THE DELIVERY OF HEALTH SERVICES
Intergovernmental Relations Act, 2012 provides for the establishment of the structures to
facilitate the intergovernmental relations envisaged under Article 189 of the constitution

14. CONCLUSION:
GOVERNANCE STRUCTURES FOR IMPLEMENTING THE
RIGHT TO HEALTH
NATIONAL/COUNTY
EXECUTIVE
PARLIAMENT/COUNTY
ASSEMBLY AS THE
LEGISLATURE
JUDICIARY

15. CENTRE FOR HEALTH HUMAN RIGHTS AND DEVELOPMENT & 3
OTHERS V. ATTORNEY GENERAL (Constitutional Court of
Uganda, Constitutional Petition No. 16 of 2011)
The Constitutional Court of Uganda failed to discuss health financing or hold the government
accountable for failing to progressively realise the right to maternal health care.
It left the discussion on implementation and enforcement of health policies solely to the
executive arm of the government.
The Court emphasized the political and legal responsibility of the executive arm of the
government to determine, formulate and implement policies of government.
In finding the petition against the petitioners, the court has implied that class actions are not
permitted in addressing state responsibility towards financing the right to health. Also the right
to health was considered from the right to life perspective. A denial of the right to health is a
violation of the right to life. This gives the right to health a stronger rating in the Bill of Rights.

16. MATTHEW OKWANDA AND THE MINISTER OF HEALTH AND MEDICAL
SERVICES AND 3 OTHERS (High Court of Kenya, Constitutional and
Human Rights Division, Petition No. 94 of 2012)
In Kenya, the court recognised the problem of limited financial resources on the part of
government towards achieving the right to health. The court spoke of steps to be taken and
steps to be seen to be taken by the state towards the realisation of economic and social rights.
Whether these steps include fiscal measures in achieving these rights, the court did not
elaborate. According to the court, the state is under the obligation to show how it is addressing
or intends to address economic and social rights through its policies and plans.
Despite making this finding the court gave neither guidance nor indication on whether this
obligation involves addressing finance and financial obligations in the state’s policies and plans.
The Court goes no further in interpreting what concrete steps mean and whether these steps
can be understood to mean the allocation of financial resources to the attainment of economic
and social rights since rights require resources.

17. DISCUSSION POINTS
1. You want to advocate for a health policy, to whom do you address your demands for policy
formulation?
2. Whom do you hold accountable for failure to deliver health services in county health
facilities?
3. Where do you seek redress when the right to health is violated and/or threatened?